Re Benhaddou
[2018] VSC 191
•18 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0074
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by OMAR BENHADDOU
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2018 |
DATE OF JUDGMENT: | 18 April 2018 |
CASE MAY BE CITED AS: | Re Benhaddou |
MEDIUM NEUTRAL CITATION: | [2018] VSC 191 |
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CRIMINAL LAW – Application for bail – Charges of armed robbery, false imprisonment and unlawful assault – Applicant required to show cause – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Hannebery | Armour Legal |
| For the Respondent | Ms S Locke | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 15 February 2018, Omar Benhaddou (‘the applicant’) was arrested and charged by police with offences of armed robbery, false imprisonment and two counts of unlawful assault.
The charges of armed robbery, false imprisonment and one count of unlawful assault relate to events alleged to have occurred on 29 December 2017 at a flat in Carlton (‘the first incident’). The remaining charge of unlawful assault relates to an event alleged to have occurred on 19 January 2018 near Drummond Street, Carlton (‘the second incident’).
There are two co-accused in the first incident, Mohamed Ali and Abdullatif Omer. There is an alleged fourth offender who has not yet been identified. Mr Ali is also a co-accused in the second incident.
The applicant has been in custody since 15 February 2018. On that day, the applicant applied to the Melbourne Magistrates’ Court for bail, but that application was refused. He appeared at the Melbourne Magistrates’ Court on 11 April 2018 for a committal mention and, on that day, the matter was set down for a committal hearing on 18 and 19 July 2018. The applicant’s co-accused, Mr Omer and Mr Ali, have also been arrested by police and charged, and all three accused are involved in the committal hearing.
By application dated 26 March 2018, the applicant applies to this Court for a grant of bail.
The alleged offending
The first incident
It is alleged that on the afternoon of 29 December 2017, the applicant and two co-accused, Mr Omer and Mr Ali, went to an apartment at Flat 2-510 Lygon Street, there being invited into the apartment by its occupant, John McKay. Mr McKay became the complainant in respect of both the incidents that occurred.
On entering the complainant’s apartment, Mr Omer pushed the complainant onto his couch before producing a black and brown semi-automatic handgun and accusing the complainant of providing information to police about a recent drug raid.
It is alleged that Mr Ali held the complainant down while the applicant wrapped electrical tape around the complainant’s head, covering his mouth. After the complainant managed to rip the tape off his mouth, yelling at the group to leave him alone, the applicant allegedly punched him twice to the head, once to the face below the left eye, and once to the right side of his jaw.
Mr Omer then told the complainant to put his 55 inch flat screen television into a shopping trolley that was in his apartment. The trolley already contained two X-box consoles belonging to the complainant’s daughter. While the group was leaving, Mr Omer said to the complainant, ‘If you go to the cops, I’ll pop you off’.
The complainant reported the incident to police on 2 January 2018. No visible injuries were observed by police, and the complainant did not seek medical treatment. On 3 January 2018, police attended the complainant’s apartment and seized some of the electrical tape allegedly used in the incident. That tape has been lodged for forensic testing.
The complainant also reported that, some days after this incident, he was approached by Mr Omer in the housing complex. Mr Omer reportedly stated that the gun used in the events in his apartment was plastic and not real. The complainant’s daughter, who was present during this exchange, told Mr Omer that he should not have threatened her father.
The case against the applicant relies on the evidence of the complainant, as well as CCTV footage. The complainant made a statement to police outlining the events, including his description of the role of the applicant.
CCTV footage obtained by the police shows that at 2.48pm, the complainant and Mr Omer entered 510 Lygon Street together, where they waited for a lift. Mr Omer then took the stairs, while the complainant took a lift to the mezzanine level, where his flat is located. At 2.49pm, the applicant and Mr Ali are observed entering the building, walking past the complainant, and taking the stairs to the mezzanine level. At 3.00pm, Mr Omer is depicted entering a lift with a shopping trolley allegedly containing the complainant’s possessions, and taking the lift down to the ground floor before exiting the building. The events in the complainant’s apartment had concluded by this time.
The Crown case is that the events that occurred in the complainant’s apartment took place approximately between 2.50pm and 3.00pm.
At 3.01pm, the CCTV footage shows Mr Omer pushing the trolley through the communal areas surrounding 510 Lygon Street, and walking towards 478 Drummond Street. At 3.03pm, Mr Omer is observed entering 478 Drummond Street and taking a lift to the 17th floor, while pushing the same trolley.
Meanwhile, at 3.04pm, CCTV shows the applicant and Mr Ali exiting 510 Lygon Street through the southern stairwell and walking towards the main entrance of 478 Drummond Street. At 3.05pm, the applicant and Mr Ali entered 478 Drummond Street and took a lift to the eleventh floor. It is alleged that the CCTV footage from this lift captured the applicant and Mr Ali laughing and re-enacting the armed robbery of the complainant.
At 3.09pm, CCTV depicts Mr Omer taking a lift down to the ground floor foyer, still pushing the trolley containing the complainant’s possessions. One minute later, at 3.10pm, he was met by the applicant and Mr Ali in the foyer. The group then exited the building together with the trolley. Mr Ali is captured leaving the area while Mr Omer and the applicant pushed the trolley back into a lift to the eleventh floor.
It would appear likely that the Crown case will be put on the basis that the applicant and his co-offenders are observed in close physical and temporal proximity with each other, and with the complainant. This may assist in the eventual inference that all three alleged offenders were acting in combination in the events concerning the armed robbery of the complainant.
The 19 January 2018 incident
The prosecution allege that at approximately 7.30pm on 19 January 2018, the complainant was in a garden area behind 467 Drummond Street, Carlton, when he was approached by two men whom he recognised as the applicant, and Mr Ali. It is alleged that the applicant asked the complainant, ‘Why did you call the cops?’. The complainant responded that he did not call the police, but someone else did, and that when the police approached him he ‘told them everything’.
At this moment, the applicant allegedly punched the complainant, saying, ‘Don’t keep going to the cops, or something might happen to ya’. The applicant and Mr Ali then left the scene on foot.
The complainant reported the matter to the police the following day. No visible injuries were observed by police.
The applicant’s arrest and interview
The applicant was arrested on 15 February 2018 following the execution of a search warrant of his parents’ residence in Parkville, where he was then living. The clothing allegedly worn by the applicant during the two incidents was seized during the search.
In his police interview, the applicant admitted to being present in the complainant’s flat during the 29 December 2017 incident, but denied participating in the armed robbery, stating he was only there to purchase cannabis from the complainant. The applicant stated that he ‘would have punched a bong or two’ and become ‘stoned’. He claimed that after he had been there for some time, Mr Omer entered through the open front door, and demanded the television from the complainant. During the interview, the applicant identified himself in the CCTV footage of him and Mr Ali pushing the trolley containing the complainant’s belongings into the lift of 478 Drummond Street.
The applicant denied the occurrence of the second incident on 19 January 2018.
No firearm has been located in relation to any of the alleged offending.
The applicable legislation
The applicant is charged with the indictable offence of armed robbery involving the threatened use of a firearm. Accordingly, pursuant to s 4(4)(c) of the Bail Act 1977 (‘the Act’), the applicant is required to ‘show cause why his detention in custody is not justified’.
At the hearing before me, both parties agreed that the applicant was in a show cause position. The applicant accepted that he bore the burden of satisfying the Court that the show cause test was met in order to justify a grant of bail.
Further, pursuant to s 4(2)(d) of the Act, the Court shall refuse bail if satisfied there is an unacceptable risk that the accused, if released on bail, would:
·fail to surrender himself into custody in answer to his bail;
·commit an offence whilst on bail;
·endanger the safety or welfare of members of the public; or
·interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
The burden of establishing unacceptable risk lies on the prosecution.
The applicant’s background
The applicant is 24 years old and has no criminal history. At the time of this application, he had been in custody for 56 days, and this was the first time he has been in custody.
At the time of the alleged offending, the applicant was living with his family at their family home in Parkville. His family comprises his two parents, his younger brother and his sister.
Prior to his arrest and remand in custody, the applicant was employed full-time as an operating theatre technician at the Melbourne Private Hospital in Parkville. He had commenced working casually at the hospital when he was 18 years old, and moved to a full-time position in February 2017.
The applicant’s contentions
In an affidavit sworn on 26 March 2018, the applicant’s solicitor, Younis Yehia, supported the grant of bail for the applicant. Mr Yehia submitted that the following matters were established by the evidence and, together showed cause why the applicant should be granted bail.
Strength of the prosecution case
It is argued that the prosecution case against the applicant relies primarily on the evidence of the complainant. The complainant has a substantial criminal record and his credibility will be the subject of attack should the matter proceed to trial. It is pointed out that there were no injuries to the complainant observed by the police on reporting the matters, nor did the complainant seek medical treatment.
It is further argued that neither incident for which the applicant is charged is captured on CCTV, despite showing that he was in the vicinity at the time of the alleged incident. Nor was there any eyewitness to either of the alleged incidents.
On the application for bail it was not argued that the Crown case, seen in combination, was a weak case. However, it was pointed out that it was not an overwhelming case. It was argued for the applicant that the prosecution case depends significantly on the evidence of the complainant being accepted.
The applicant’s youthful age, good character and lack of prior convictions
It was pointed out that the applicant is 24 years old and that, as well as having no criminal record, he has an established good character. The applicant’s application for bail is supported by two character references. The first is from Brandon Ellis, a footballer with the Richmond Football Club, who is a childhood friend of the applicant. Mr Ellis attests to the applicant’s honesty, loyalty, discipline and respect.
The second character reference is from Dr Mohammed Awad, a neurosurgeon who works with the applicant at the Melbourne Private Hospital. Dr Awad attests to the applicant’s reliability and trustworthiness.
Availability of stable accommodation with family
It is proposed that the applicant would reside with his family at the home in Parkville, if released on bail. The applicant notes that no member of his family has ever had involvement with the police or with the courts. The applicant’s home address is approximately four kilometres from the complainant’s home in Carlton.
Additionally, the applicant’s parents have agreed to monitor the applicant’s compliance with his bail conditions and report any breaches to police.
The availability of stable employment
The applicant is employed full-time as a theatre technician at the Melbourne Private Hospital. His employment is confirmed in a letter written by Ms Leanne Umstad, General Manager of the Melbourne Private Hospital. I was informed that due to the applicant’s arrest and remand in custody, he has taken leave without pay from his employment and that his employment has not been terminated. However, it appears that his employer has recently become aware of the gravity of the allegations made against the applicant. His return to work, should he be granted bail, is no longer guaranteed. I was told that he has never attended work in a drug-affected state, and that, to this point, he has been a well-regarded employee at the hospital. Ultimately, there is a state of uncertainty as to whether the applicant would be able to return immediately to his previous employment, should he receive a grant of bail from this Court.
Availability of Islamic community support
The applicant is a practising Muslim, and it is proposed that, should he be granted bail, he will participate in a program jointly run by the Somali Australian Council of Victoria (SACOV), and the Harmony Centre, Heidelberg.
The applicant would receive weekly counselling and mentoring from Mr Abdiaziz Farah, a Senior Social Worker at SACOV, as well as a weekly two hour Civic Participation Program with Sheikh Weli, the Chief Imam of the Islamic Council of Victoria. Mr Farah’s support would include cognitive behavioural therapy to enable the successful reintegration of the applicant into the community. Sheikh Weli’s support is aimed at reducing antisocial behaviour and instilling a sense of purpose in young people. Next, the applicant would receive weekly mentoring from Dr Hussein Haraco, to address personal and family issues and reintegrate into the social, economic and cultural life of his local community.
The availability of a surety
The applicant’s father, Mr Hassan Benhaddou, is able to provide a surety of up to $40,000.
Availability of a range of conditions on being released on bail
If released on bail, it is proposed that the applicant would:
(a) reside at his parents’ Parkville home;
(b) report daily to the Flemington Police Station;
(c) observe a curfew from 9.00pm to 6.00am unless accompanied by his mother or father;
(d) follow the lawful directions of Mr Abdiaziz Farah, or his nominee;
(e) not enter the suburb of Carlton;
(f) not associate with any co-accused;
(g) not contact any prosecution witness other than the informant;
(h) surrender his passport and not apply for another; and
(i) not attend any points of international departure.
The prosecution’s contentions
The prosecution opposes the application for bail on the basis that the applicant has not shown cause, and that there is an unacceptable risk that, if released on bail, he would commit further offences, interfere with witnesses or otherwise obstruct the course of justice.
On the issue of unacceptable risk, the focus of the prosecution’s affidavit in response was on the following matters:
The pre-existing relationship between the applicant and his co-accused
It is submitted by the prosecution that the applicant has a pre-existing relationship with both co-accused. In particular, the applicant and Mr Ali were Facebook friends and went to Princes Hill Secondary College together.
The co-accused Mr Ali and Mr Omer have a pre-existing relationship through their mutual friends and family that live in the Carlton area.
It is further noted that, whilst in police custody, Mr Ali informed police that all three have been communicating whilst in custody.
The applicant’s likelihood of interfering with witnesses or tampering with evidence
The prosecution are also concerned that if granted bail, the applicant may approach the complainant at the behest of Mr Omer or Mr Ali and coerce him into withdrawing or changing his statement to police about the alleged events.
Additionally, the informant is concerned that the applicant may assist his co-accused with removing, hiding or destroying any firearm used in the alleged offending.
Insufficiency of the proposed bail address, and the applicant’s known frequenting of the Carlton area
The applicant works and lives in Parkville, which is adjacent to Carlton. By his own admission, the applicant attends Carlton, and specifically the housing estate where the complainant lives, to buy cannabis.
The prosecution contend that, even if a condition of bail is imposed which prevents the applicant from entering Carlton, his proximity to Carlton and his association with people who frequent Carlton, leave him an unacceptable risk of interfering with the complainant.
The complainant’s attitude to the applicant
The prosecution point out that the complainant is fearful of further acts of violence being committed against him by the applicant, or his co-accused.
The prosecution argue that this fear is consistent with the complainant’s allegations against the applicant, being that he approached and assaulted the complainant on 19 January 2018, only three weeks after the 29 December 2017 incident.
Additional incidents involving the applicant
There are two additional incidents that involve the applicant which, as yet, have not resulted in further charges being laid against him. A summary of these two incidents are as follows.
First, a summary of material facts prepared by the informant describes a second incident on 29 December 2017. This allegedly involved the applicant, Mr Omer and Mr Ali, approaching and intimidating two cleaners in the hallway area of the eleventh floor of 478 Drummond Street. This incident is alleged to have occurred directly before the incident involving the complainant, for which the applicant is charged. It is alleged that during the exchange, Mr Omer displayed a handgun to the cleaners and took a phone off one of them, before the cleaner grabbed it back.
Although this incident may not be charged as a separate event, the evidence would appear to be admissible as part of the Crown case against the applicant in respect of the offence of 29 December 2017. The evidence would appear to bear relevance to the applicant’s knowledge of Mr Omer, and further, his knowledge of Mr Omer’s possession of a firearm, a short time before the events that took place in the complainant’s apartment.
A further incident occurred on 1 January 2018, which allegedly involved the applicant, Mr Omer and Mr Ali, after they were invited into the apartment of a complainant, Steven Liddell, at 174/478 Drummond Street, Carlton. It is alleged that Mr Omer produced a large brown handgun, saying that it was loaded.
My verbal reasons suggested it was alleged that Mr Omer discharged the firearm in the complainant’s apartment during this incident, in the presence of the applicant. The prosecution has since clarified it is not in a position to allege the firearm was discharged in the presence of the applicant.
It would appear that the evidence of these two events may be admissible in proof of the case against the applicant for the events of 29 December 2017 in the complainant’s apartment.
Discussion
Before me the applicant did not agitate for a conclusion that the prosecution case was a weak one, but did not accept that it was strong. The Crown on the other hand argued that it was a strong case.
It appears to me that on the present state of the evidence the prosecution case cannot be regarded as weak. On the other hand, it is not overwhelming. It is argued for the applicant that the case is ‘contestable’, and there are realistic prospects of an acquittal. The evidence of the complainant is of course very important to the proof of both incidents and without it being accepted the case would likely fail. However, as observed, the prosecution case is one that depends on direct evidence, but it is supported by circumstantial evidence. This includes CCTV evidence, and the evidence of Mr Omer’s possession of the firearm, said to have occurred in the presence of the applicant.
At this point it appears there will be a contested hearing of these allegations and a two-day committal hearing is listed for 18 July 2018. Thereafter the matter will most likely be heard in the County Court. Taking the committal hearing into account, I am informed that there is likely to be a substantial delay of up to 12 months before these contested proceedings will be finalised.
The consequence is that the applicant faces being remanded into a custodial setting for the period leading up to the trial. It was put on the applicant’s behalf that this would represent a substantial delay given the circumstances of the applicant, his alleged offending, and his background. Against that, the allegations are serious. They involve an armed robbery in company that occurred in the victim’s home. It is alleged that the relevant weapon was a firearm, and that it was operational. However, fortunately for the victim, despite being assaulted and restrained, he suffered no physical injury. He was doubtless traumatised as a result of the events that occurred in his home, as well as the events he alleged happened some weeks later. He remains feeling unsafe.
The applicant presents as 24 years old, never before having been in a custodial setting. At this point he has steady employment, a stable place to live with his family, and the support of religious figures who are prepared to work with him in the period that follows. Unlike his alleged co-offenders, the applicant has no previous criminal history. This latter circumstance tends to provide some degree of confidence that the applicant will adhere to any conditions that may be imposed on a grant of bail, and thereby reduce risk factors to a satisfactory degree of acceptability.
It is proposed that the applicant will engage in counselling and mentoring with Sheikh Weli, Dr Haraco, and Mr Farah, a social worker. These connections were made though the applicant’s involvement with the Islamic community. These appear to be very positive steps and represent a significant part of my decision to grant bail in this matter. It is hoped that the applicant will return to work, but at the moment there is a not a high degree of confidence that this will be the case.
In my opinion, taking all matters before me into account, he has shown cause why his detention in custody is no longer justified. In summary, the unacceptable risks here are stated as:
(a) The applicant’s potential to re-offend;
(b) The possibility that he will tamper with witnesses, particularly the complainant, or with the evidence; and
(c) The applicant’s ongoing communication with his alleged co-accused.
In my opinion, the matters of unacceptable risk which remain of concern to the Crown can be dealt with by a strong set of conditions directed towards the applicant’s continued residence at the family home, with a curfew; reporting to a police station three times weekly; not associating with his alleged co-offenders – directly or indirectly; not using illicit drugs; no travel into the suburb of Carlton; no contact with the complainant, or other witnesses – directly or indirectly; reporting by family should bail condition be breached; and, the usual conditions regarding departure from the state, relinquishing of any passport held, and not attending any point of international departure.
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